E.K.K. (Democratic Rep. of Congo) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 24 March 2017
• Neutral Citation: [2017] IEHC 188
• Docket Number: [2013 No. 237 JR]
• Court: High Court
• Date: 24 March 2017

[2017] IEHC 188

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2013 No. 237 JR]

BETWEEN

E.K.K. (Democratic Rep. of Congo)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE REFUGEE APPEALS TRIBUNAL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration & Nationality – Refugee Appeals Tribunal – Refugee Status – s. 5 of The Illegal Immigrants (Trafficking) Act 2000 – Judicial Review – Certificate for Leave to Appeal – Point of Law of Exceptional Public Importance.

Facts: Following the refusal of the application for an order of certiorari in respect of a decision of the Refugee Appeals Tribunal, the applicant now sought a certificate for leave to appeal against the decision that denied the applicant a refugee status. The respondent contended that the applicant had committed procedural flaws in the grounding of the affidavit. The respondent argued that the applicant had been afforded the opportunity to rectify mistake. The applicant argued that there had been some uncertainty or state of flux in the interpretation of the law in the present case.

Ms. Justice Stewart held that the application for leave to appeal would be refused. The Court declined to accept that there had been any uncertainty in the law. The Court observed that the applicant had failed to raise the point of law amounting to an exceptional public importance.

JUDGMENT of Ms. Justice Stewart delivered on 24th day of March, 2017.

1 The application currently before the Court involves a motion for a certificate for leave to appeal this Court's decision in E.K.K. (Democratic Rep. of Congo) v. Minister for Justice & Equality and Ors [2016] IEHC 38. The background facts and the decision of the Court are set out therein. In that case, the Court refused the application for an order of certiorari in respect of a decision of the Refugee Appeals Tribunal to affirm the decision of the Refugee Applications Commissioner, which denied the applicant refugee status. The Court's reasoning revolved around the principles outlined by Peart J. in Imafu v. MJELR [2005] IEHC 182 and procedural failures on the applicant's part regarding her grounding affidavit. The Imafu principles state that a fundamental lack of credibility on the applicant's part absolves the decision-maker of the requirement to consider country-of-origin information when determining the veracity of the applicant's story. The procedural issue in question relates to the failure to comply with O. 40, R.13A, 14 & 14A of the Rule of the Superior Courts (Affidavits) 2012 (hereon referred to as ‘the ROSC’) when swearing the affidavit of a deponent who does not possess sufficient fluency in an official language of the State. The applicant now seeks a certificate for leave to appeal, pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000 (as amended by s. 74 of the Court of Appeal Act 2014). S. 5 states that the High Court shall only grant a certificate where its decision involves a point of law of exceptional public importance and it is desirable in the public interest that an appeal be taken to the Court of Appeal.

Applicant's submissions

2 Paul O'Shea B.L., for the applicant, relies on the decision in R.A. v Refugee Appeals Tribunal & Ors No. 2 [2015] IEHC 830, in which Humphreys J. granted a certificate for a similar question regarding the Imafu principles. Humphreys J concluded that the differing approaches to the application of those principles outlined by Eagar J. in M.M.S. v Minister for Justice & Equality [2015] IEHC 659 and, inter alia, his own decision in R.A. v. Refugee Appeals Tribunal No. 1 [2015] IEHC 686 constituted a point of law of exceptional public importance. At para. 9, he stated:

‘The essential point remains that the resolution by the Court of Appeal of a conflict between two High Court judgments is classically a potential point of law of exceptional public importance particularly where there is a huge and inevitable potential for the same issues to be raised time and again in future High Court cases.’

3 The applicant also challenges Humphreys J.'s finding in R.A. No. 2 that a pending appeal before the Court of Appeal militates against a second certification of the same question. She contends that, should the R.A. case be withdrawn from the Court of Appeal for whatever reason, she is left without an answer to her question. The applicant employs similar reasoning against an adjournment of these proceedings until the R.A. case has been decided by the Court of Appeal. She also submits that the adjournment of similar cases is a matter for the Court of Appeal and that the questions over the interpretation of EU law raised in this case mandate the grant a certificate, per Cooke J.'s decision in Lofinmakin (an infant) v. Minister for Justice, Equality & Law Reform and Ors [2011] IEHC 116.

4 Regarding the applicant's procedural failings, the applicant submits that O. 14, R. 13A, 14 and 14A ROSC should have been dis-applied in the applicant's case in order to prevent the contravention of EU law, particularly Art. 47 of the Charter of Fundamental Rights. A similar argument is made regarding any attempt to rely on the common law predecessor to R. 14, Saleem v. Minister for Justice [2011] IEHC 49. It is also submitted that this Court's decision is in conflict with Hogan J.'s approach to the dismissal of proceedings for procedural non-compliance, as outlined in S.A. v. Refugee Appeals Tribunal [2012] IEHC 8. Thus, it is alleged that a point of law of exceptional public importance exists under Humphreys J.'s reasoning in R.A. No. 2.

5 Regardless of Humphreys J.'s approach in R.A. No. 2, the...